Miami Herald Case Before the Supreme Court

The historic debate over the rights and responsibilities of a free press is entering a new phase marked by a demand for public access to the news media. This demand represents attempts by minority groups to gain outlets for voicing their causes, by political candidates for assured air time or guaranteed newspaper space, by aggrieved persons who want the right to reply. The list is long. Underlying nearly all of these demands for access to the news media is a professed belief that the First Amendment's freedom-of-the press provision gives all people the right to express their views through existing journalistic institutions.

The Supreme Court is expected to rule soon on the constitutionality of a Florida right-to-reply law. It grants any candidate for public office whose record or character is attacked in a newspaper the right to have a reply published in that paper. The news media across the nation are almost unanimous in viewing the law as a serious violation of the First Amendment. Moreover, there is fear that other states or even Congress might enact similar legislation if the Florida law is upheld. At present, Mississippi is the only other state with a right-to-reply law. Sen. John L. McClellan (D Ark.) said in February that if the Court upheld the Florida statute, Congress should consider passing a national right-to-reply law along the same lines.

The case rests on a relatively new concept which is stated by a leading advocate of public access, Jerome A. Barren, a law professor at George Washington University, in this way: “Freedom of the press must be something more than a guarantee of the property rights of media owners.” Professor Barren contends that in an era of mass communications, the First Amendment guarantees of freedom of speech and of the press are meaningless unless the public has access to “the great engines of public opinion—radio, television and the press.” But due to extraordinary technological changes that have taken place in the communications field, he maintains, ownership of the press—and consequent control of the material it publishes or broadcasts—is restricted to a small number of wealthy individuals. Barren calls this a private censorship as depressing to the free flow of ideas as government censorship.